Dirty Deal: Dishonest Abe?

Article excerpt

It's fine for members of Congress, but Supreme Court justices aren't supposed to trade votes--especially when somebody's freedom is at stake. Yet that's what happened in two 1966 eases over dirty books and magazines. L. A. Powe Jr. tells the story in the Journal of Supreme Court History (July 2010).

One of the cases involved the 18th-century novel Memoirs of a Woman of Pleasure, better known as Fanny Hill, the name of its protagonist. ("Fanny Hill" may have been slang for the female pudendum.) The sex-sodden book was written by John Cleland and published in two parts in 1748 and 1749. Though it had provoked obscenity prosecutions in the United States since the early 19th century, the publisher G. P. Putnam's Sons took a chance and reprinted the novel in 1963. But a Massachusetts court held that the book violated state obscenity law, and the Supreme Court agreed to hear the appeal.

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The other ease involved Ralph Ginzburg, a notorious mail-order pornographer. After a federal trial in Philadelphia, he was convicted of obscenity for three works: a book called The Housewife's Handbook on Selective Promiscuity, an issue of a magazine called Eros-which, scandalously for the time, showed a nude black man embracing a white woman, also unclothed--and a bawdy newsletter called Liaison. He was sentenced to three years in prison for the book and two years for the magazine, and fined $28,000 for the newsletter. He appealed to the Supreme Court.

When the justices conferred on the two cases, a majority, including Abe Fortas, agreed that Fanny Hill was obscene. Ginzburg's fate hinged on the decision of Justice Fortas, who said he was unsure which way to vote.

Later, Fortas changed his mind about Fanny Hill, for fear that banning the novel would unleash a wave of censorship. …